Present: All the Justices 

NORFOLK AND WESTERN RAILWAY COMPANY 

OPINION BY JUSTICE ROSCOE B. STEPHENSON, JR. 

v. Record No. 951428 

 April 19, 1996 

JAMES L. CHITTUM 

FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE 

Clifford R. Weckstein, Judge 

 The principal issue we consider in this appeal is whether 

the evidence is sufficient to support a verdict in favor of the 

plaintiff. We also consider whether the trial court erred in 

refusing to deduct the plaintiff's pension contributions in 

calculating his net income. 

 I 

 Plaintiff, James L. Chittum, filed a motion for judgment 

under the Federal Employers' Liability Act, 45 U.S.C. § 51 et

seq. (the Act or FELA), against his employer, Norfolk and Western 

Railway Company (N & W), seeking recovery of damages for personal 

injuries allegedly caused by N & W during the course of his 

employment. N & W denied liability, and a jury trial ensued. 

The jury returned a verdict in favor of Chittum in the amount of 

$300,000, and the trial court entered judgment thereon. N & W 

appeals. 

 II 

 Chittum prevailed at trial; therefore, we must view the 

evidence and all reasonable inferences drawn therefrom in the 

light most favorable to him. Chittum commenced working for N & W 

in June 1973 as a laborer, repairing railroad tracks. In 

December 1973, Chittum was shot in a hunting accident, and the 
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bullet lodged in his spine, rendering him paraplegic. He 

gradually recovered, however, and, in 1978, after an evaluation 

and release by N & W's own doctor, he returned to his previous 

work. 

 Chittum, however, experienced some residual physical 

limitations, including a medical condition known as "foot drop" 

and chronic leg and back pain. He also walked with a limp. With 

the aid of metal foot and ankle supports attached to his shoes, 

however, Chittum was able to work regularly until 1981, when a 

nail punctured the heel of his right shoe. 

 Chittum tried to treat the wound himself, but it would not 

heal. He then came under the care of Dr. Young S. Kang, a 

plastic and reconstructive surgeon. In August 1981, Dr. Kang 

performed a split thickness skin graft on Chittum's right heel. 

 In January 1982, Dr. Kang released Chittum to return to 

work, and Chittum reported to N & W's terminal supervisor and 

advised him about the skin graft. N & W then sent Chittum to a 

local hospital for a fitness-for-duty examination by a Dr. Watts, 

the physician regularly used by N & W for such examinations. 

Following the examination, Dr. Watts released Chittum to return 

to work without any restrictions, and Chittum returned to work 

the next day.1

 In October 1989, Chittum was required to work on and around 

 1The record also discloses that Dr. Watts examined Chittum's 

foot in August 1989. 
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piles of railroad spikes in N & W's roadway materials yard. His 

work involved opening kegs containing spikes and dumping the 

spikes from the kegs onto the ground so the spikes could be 

salvaged for further use. While working there, Chittum tore the 

skin graft when he twisted his right foot on some spikes. 

 Initially, Chittum treated himself as Dr. Kang had taught 

him to do. In April 1990, however, he returned to Dr. Kang. The 

doctor prescribed an arch support to take the weight off 

Chittum's heel, and Chittum obtained the support and returned to 

work. In April 1991, Chittum again tore the skin graft slightly 

while working on the spike pile. 

 Chittum told Gary Obenchain and L.P. Porter, two of his 

supervisors, that working on the spike job was hurting him. None 

of his supervisors, however, did anything about his complaint or 

told him to stop working. 

 Chittum's condition worsened, and, on June 4, 1991, he 

returned to Dr. Kang. The doctor noted that the original skin 

graft had deteriorated sufficiently to require a new surgical 

procedure. 

 The day after Chittum's June 4, 1991 visit with Dr. Kang, 

Chittum told Obenchain that he was going to have further surgery 

relating to the skin graft on his right heel. Chittum also told 

Linwood Crenshaw, another supervisor, of his impending surgery. 

No one, however, told Chittum to stop working, and Chittum 

continued to work until June 17, 1991, when he tore the skin 
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graft a third time. Dr. Watts then ordered that Chittum be taken 

out of service. 

 Dr. Kang performed the second surgery in two stages in June 

and July 1991. Chittum was never released to return to work, and 

N & W concedes that Chittum is not physically qualified to do so. 

 III 

 N & W contends that the trial court erred in permitting 

Chittum to prevail on his claim of initial injury and subsequent 

aggravations thereof "where there was no evidence that [N & W's] 

alleged negligence played any role in [Chittum's] October, 1989 

injury." N & W asserts that "[s]ince there was no evidence as to 

the real cause of [Chittum's] October, 1989 injury, the jury was 

left to speculate improperly and impermissibly as to what had 

caused the injury." 

 According to N & W, "[t]he evidence is uncontroverted that 

at the time of his injury in October, 1989, [Chittum] was working 

as a painter's helper with a Bridge and Building Gang [, and] 

[t]he duties of a painter's helper did not require him to open 

spike kegs or walk over spikes." N & W bases this conclusion on 

certain answers Chittum gave during his cross-examination. 

 During the cross-examination, N & W's counsel confronted 

Chittum with certain N & W documents which indicated that Chittum 

was not working in the roadway materials yard during October 

1989. When confronted with these documents, Chittum agreed "as 
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far as [the documents] show."2

 On redirect examination, however, 

Chittum testified that, despite what the documents indicated, he 

first tore the skin graft while working in "the railway material 

yard." 

 N & W, in asserting its contention, relies upon the 

doctrine, established in Massie v. Firmstone, 134 Va. 450, 462, 

114 S.E. 652, 656 (1922), that a litigant is bound by his own 

factual statements. The doctrine, however, does not apply "to an 

adverse statement standing in isolation from the litigant's 

testimony as a whole." Baines v. Parker and Gladding, 217 Va. 

100, 105, 225 S.E.2d 403, 407 (1976). Consequently, "[a] 

damaging statement made in one part of [a litigant's] testimony 

must be considered in the light of an explanation of such 

statement made in a later part of his testimony. . . . And it is 

generally for the jury to determine whether it will accept such 

explanation or clarification." VEPCO v. Mabin, 203 Va. 490, 494, 

 

 2Based on the documents and Chittum's answers during crossexamination, N & W also contends that there was a fatal variance 

between Chittum's allegations in his motion for judgment and his 

proof. N & W advanced this contention in the trial court during 

its post-verdict argument. The trial court rejected the 

contention, reasoning that it had not been made at trial "in such 

a manner as to call to the attention of the trial judge . . . and 

[Chittum's] lawyer . . . the fact that [the] argument was made." 

 We agree with the trial court. 

 N & W's counsel, at one time during the trial, did state 

that "the allegations . . . in the pleadings . . . are just 

simply wrong. They have identified incidents that are not 

possible to have happened because of the time frame and where 

. . . Chittum was working." We do not think, however, that this 

statement raised the issue of a fatal variance "with reasonable 

certainty." Rule 5:25. 
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125 S.E.2d 145, 148 (1962). 

 In the present case, Chittum's damaging statement made in 

one part of his testimony cannot be viewed in isolation from his 

later testimony. The jury resolved this conflict in the evidence 

in Chittum's favor, and we conclude that the trial court properly 

rejected N & W's contention. 

 IV 

 N & W further contends that Chittum produced insufficient 

evidence of foreseeability to create a jury issue on the question 

of negligence. N & W asserts that "there is no evidence that 

[it] was on notice that allowing Chittum to do spike reclamation 

put his skin graft at risk." 

 An essential ingredient of negligence under the Act is 

reasonable foreseeability of harm to the employee. Norfolk and 

Western Railway Co. v. Johnson, 251 Va. 37, 43-44, 465 S.E.2d 

800, 805 (1996). However, an employer need not foresee the 

particular consequences of its negligent acts; rather, it must 

compensate its employee "for even the improbable or unexpectedly 

severe consequences of [its] wrongful act." Gallick v. Baltimore 

& Ohio R.R., 372 U.S. 108, 120-21 (1963). 

 When the evidence in the present case is viewed in light of 

the foregoing principles of law, we conclude that the jury 

reasonably could have found that the injury Chittum sustained was 

reasonably foreseeable. Chittum testified that a N & W claim 

agent and a N & W supervisor came to his home and saw his right 
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heel while he was recuperating from the 1981 skin graft 

operation. Chittum complained to his supervisors, Obenchain and 

Porter, about having to work on the spike pile. N & W's own 

physician, Dr. Watts, examined Chittum's skin graft in 1982 and 

again in 1989 and never recommended any restrictions or 

limitations regarding the work Chittum could perform. Thus, we 

reject N & W's contention that it did not have notice of any risk 

to Chittum. Indeed, "[c]ourts are not free to reweigh the 

evidence and set aside the jury verdict merely because the jury 

could have drawn different inferences or conclusions or because 

judges feel that other results are more reasonable." Tennant v. 

Peoria & P. U. Ry., 321 U.S. 29, 35 (1944). 

 V 

 N & W also contends that Chittum failed to establish that N 

& W's alleged negligence was the cause of his injury. N & W 

asserts that none of Chittum's experts related the breakdown of 

his skin graft to walking over spikes. N & W further asserts 

that there is no evidence that its negligence caused the alleged 

aggravations of the primary injury. 

 Pursuant to the Act, an employer has a duty to provide its 

employees with a safe place to work. Bailey v. Central Vermont 

Ry., 319 U.S. 350, 352-53 (1943). The employer also has a 

nondelegable duty to inspect its premises and other areas where 

its employees are required to work and to take reasonable 

precautions to protect its employees from possible danger. Cazad
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v. Chesapeake & Ohio Ry., 622 F.2d 72, 75 (4th Cir. 1980). 

Moreover, the employer has a duty "to assign its employees to 

work for which they are reasonably suited . . . [, and it] 

breaches that duty if it knew or should have known that its 

assignment exposed the employee to an unreasonable risk of harm." 

Sabb v. Norfolk & P. Ry. Co., 222 Va. 19, 23, 278 S.E.2d 795, 

798 (1981). 

 The Supreme Court, in establishing the standard under the 

Act by which a jury may properly determine a causal relationship 

between an employer's negligence and an employee's injury, stated 

the following: 

 [T]he test of a jury case is simply whether the proofs 

justify with reason the conclusion that employer 

negligence played any part, even the slightest, in 

producing the injury . . . for which damages are 

sought. It does not matter that, from the evidence, 

the jury may also with reason, on grounds of 

probability, attribute the result to other causes, 

including the employee's contributory negligence. 

Rogers v. Missouri Pacific R.R., 352 U.S. 500, 506 (1957) 

(footnotes omitted). 

 Applying the foregoing principles of law, we conclude that 

the evidence in the present case, when viewed in the light most 

favorable to Chittum, is sufficient to support the jury's finding 

that N & W was negligent in failing to provide Chittum with a 

safe place to work. From the testimony of Chittum and several of 

his co-workers, as well as various photographs depicting the area 

where Chittum was required to work, the jury reasonably could 

have found that N & W knew, or should have known, that Chittum's 
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work assignment exposed him to an unreasonable risk of harm. 

 We also conclude that the evidence supports the jury's 

finding that N & W's negligence played a part in producing the 

primary injury in October 1989 and the aggravations thereof in 

April and June 1991. Although much of the expert testimony 

reasonably could have produced a different result, Chittum's own 

testimony was sufficient to create a jury issue regarding 

causation. As we have said, "`even when medical testimony fails 

to establish causal connection expressly,'" a plaintiff's 

testimony alone is sufficient to create a jury issue regarding 

causation. Todt v. Shaw, 223 Va. 123, 126-27, 286 S.E.2d 211, 

213 (1982) (quoting Peterson v. Neme, 222 Va. 477, 483, 281 

S.E.2d 869, 872 (1981)). 

 VI 

 Finally, N & W contends that the trial court erred in ruling 

that, for purposes of calculating Chittum's net wages under the 

Act, Tier I and Tier II retirement payments made by Chittum 

should not be deducted from his gross wages. N & W relies in 

large part on Norfolk & W. Ry. v. Liepelt, 444 U.S. 490 (1980). 

In Liepelt, a wrongful death action brought under the Act, the 

Supreme Court held that, with respect to the measure of damages, 

a railway company is entitled to present evidence of the effect 

of income taxes on the decedent's estimated future earnings. 444 

U.S. at 493-94. 

 The Supreme Court, however, has never held that Tier I and 
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Tier II payments toward retirement are to be treated the same as 

federal and state income taxes and, therefore, deducted to 

establish net income. Nevertheless, building upon Liepelt, N & W 

asserts that the retirement payments are congressionally mandated 

federal taxes and, therefore, like income taxes, should be 

deducted from gross income in determining damages. We do not 

agree. 

 Even though retirement payments are mandated by Congress, we 

do not equate them with income taxes. Furthermore, N & W has not 

cited, and we have not found, a single FELA decision from either 

a federal or a state court holding that such retirement payments 

should be deducted from gross income in calculating net income. 

We conclude, therefore, that the trial court did not err in 

rejecting N & W's contention. 

 VII 

 We find no error in the trial court's rulings. Accordingly, 

we will affirm the judgment. 

Affirmed.